FOI UPDATE 2000: State and local developments
By Frosty Landon
Special to freedomforum.org
Open government is gaining ground in some states, despite growing
concerns about privacy in the Digital Age.
Several state sunshine laws have been strengthened in the last two
years, especially in states where audits by newspapers, college students
or state agencies have dramatized problems encountered by citizens
seeking access to public records.
More thann 20 statewide audits had been conducted by year-end 2000.
A growing number of states also are setting up new administrative review
procedures, FOI ombudsmen or tougher enforcement measures to give
citizens some means of appealing denial of access without having to go
In the last five years, a half-dozen FOI/First Amendment coalitions also
have been established to monitor and improve access to government
information for the public and the press.
However, growing use of the Internet is triggering an explosion of
privacy legislation in the states; some journalism organizations are
debating whether to seek a special exception to maintain press access to
Virginia's new two-year state budget, adopted in early March, included
$329,379 for the state's new Freedom of Information office and Advisory
Council. The new office will answer the public's access questions, guide
government officials in FOIA's use and issue non-binding interpretations
of open-meeting and open-record rules. The office will be similar to New
York's Committee on Open Government, which was established 26 years earlier.
A full-time public access office was set up a year earlier in Indiana.
The Illinois Senate currently is considering a House-passed bill to give
that state's attorney general and local prosecutors new FOI enforcement
powers. In all, about a dozen states have some type of FOI ombudsman or
non-judicial review process to aid citizens in gaining access to public
meetings and government information. The Virginia, Indiana and Illinois
initiatives all have occurred in the wake of press audits that
underscored problems with access to local government. New FOI
legislation in Pennsylvania also envisions an independent access office.
Perhaps one of the most significant developments in the states in recent
years has been the series of "audits" of state and local officials'
compliance with sunshine laws. The first was a cooperative effort by
seven newspapers in Indiana, resulting in a series of reports revealing
how often citizens seeking access were turned away. The audit and
subsequent media coverage caught the attention of elected officials and
provoked improvements. Similar results were achieved in audits by other
Here is a roundup of all of the state FOI audits that have been
conducted to date, followed by a state-by-state roundup of other FOI
developments as of March 2000:
The FOIArkansas Project was an audit conducted by reporters, editors and publishers of five daily newspapers and the Donrey News bureau in Little Rock and published last October.
Municipalities did extremely well in compliance; access to jail logs fared poorly. Officials have pledged to step up access education for front-line employees. The legislature has appointed a commission to study electronic access, raising hopes of an e-FOIA bill in the 2001 session. An issue that's pending: When is e-mail by a public board sufficiently "chained" to amount to a "meeting" in cyberspace? See more details.
Local government agencies routinely disregard the state's Public
Records Act, rejecting outright or stonewalling requests for
indisputably public information more than 75% of the time.
Citizens seeking key records are forced either to abandon their pursuit
of the records or to take the costly step of hiring a lawyer to sue the
agencies to compel disclosure.
In a recent survey, sheriffs' departments were the worst offender,
denying requests for clearly public records 80% of the time. This
rejection rate compared to 64% for police departments. Cities
performed only slightly better, denying 60% of the requests for
public documents, while school districts denied access almost 33% of the time.
This public records "audit," designed to assess local government
compliance with the California Public Records Act (CPRA), was undertaken
by the California First Amendment Coalition (CFAC) and the Society of
Professional Journalists (SPJ) and was supported by volunteer students
of the journalism departments from five California universities. Under
the supervision of their journalism professors, several dozen university
students asked more than 130 local government agencies in the San
Francisco Bay Area and the counties of Los Angeles, Orange and San
Bernardino for information whose release to the public is clearly
mandated by state law.
The records sought were those that track responses by police to
citizens' distress calls, why school boards expel students, how cities
pursue health and safety violations by slumlords, and why people die in
prisons, jails or simply under arrest.
From July 11 through mid-October 2000, more than three dozen Colorado newspapers, from The Denver Post to the Telluride Daily Planet, and The Associated Press, visited all 63 counties.
They asked for six bedrock public documents: the superintendent's contract, police incident reports, a jail roster, the mayor's travel expenses, a restaurant health inspection and a list of people charged with a crime.
Plenty of government records, such as police investigations, are not public, but the newspapers didn't ask for any of those.
In most places, the process was as simple as ordering a hamburger and fries.
About half the time, documents were handed over immediately. Sometimes it took a little longer. But overall, two-thirds of the agencies produced documents within the 72 hours sometimes allowed by state law.
One out of every eight requests, however, was rejected. See more details.
This audit was conducted by Connecticut's Freedom of Information Commission, a state agency. The survey results, the commission reported, "are like a chain reaction pile-up on the Interstate rather than an isolated fender bender. Compliance across the board, by geographical area, by size of locality, by type of office, was abominable."
Although half of the requests for records were successful and a majority of government workers were rated as "cooperative," the auditors were taken aback at the non-compliance because Connecticut is considered a leader in records access.
The audit's authors suggested two approaches to improving the situation: further education regular audits, accompanied by incentives or disincentives "that would provide agencies with a reason for complying or improving compliance." See more details.
Ten newspapers and newspaper groups and the Georgia First Amendment Foundation sent 75 surveyors on 316 face-to-face requests for records. The survey found that 90% of the cities, counties and universities were in compliance with Georgia's sunshine laws. However, only 44% of city police, county sheriffs and school superintendents handed over public records. See more details.
In the Illinois audit, 15 news organizations made 605 visits in all 102 counties. More than 25% of the requests for records were denied, even when officials were given time to get legal advice or compile the records. Thirty-three of 95 jails failed to provide jail logs. Attorney General Jim Ryan told the Associated Press, "If you have met this kind of resistance to compliance and it's statewide, we've got a problem and we better do something about it, and I will." As a result, the Illinois House voted overwhelmingly on March 7 to give the attorney general and local prosecutors the power to overrule FOIA denials by public officials. The bill, now in the Senate, would allow citizens denied access to inspect or copy a public record to request the review of the denial. See more details.
The audit in Indiana that started the series of state audits found widespread non-compliance with the sunshine law. The seven newspapers who cooperated in the project published the results in February 1998 showing that local officials routinely refused to release public records. In the wake of the survey coverage, Indiana's governor established the Office of Public Access Counselor and was ratified by the legislature, effective last July 1. See more details.
Citizens seeking crime statistics, routine police reports, nursing home
records and other public information about their government routinely
are turned away by local officials, many of whom are unaware of the
state's open-records law, an investigation by 13 Iowa newspapers has
Twelve daily newspapers and one weekly paper conducted the joint
investigation in Spring 2000. Newspaper employees were sent to all 99
counties to request public documents, including government expense
reports, property-tax information, police reports, and lists of who has
permits to carry concealed guns.
The newspaper employees presented themselves as Iowa citizens, not as
journalists, as a way to test how citizens are treated when they ask for
information from their government.
Some of the government workers clerks stationed at the front
counters, county attorneys, sheriffs and others were helpful. But
many, especially in law enforcement, were evasive or even intimidating,
the joint investigation found. The Des Moines Sunday Register reported
these findings (the percentages are based only on counties where
newspaper employees were not identified as a member of the media):
- 58% of the sheriff departments denied access to information about
people who have received permits to carry concealed weapons.
- 42% of police departments in the largest city in each county denied
access to reports of the most recent incidents officers dealt with.
- 9% of city offices denied access to expense reports filed by the city
manager, city administrator or public works director.
- 2% of county auditor offices refused to make available records
detailing expenses filed by county supervisors.
- 2% of cities denied access to building permits.
All county treasurers provided information about the sheriffs' personal
property-tax bills, the kind of record frequently requested by lawyers,
abstractors and real estate agents.
A separate mail request sent to Iowa's school districts found that 80%
of the districts ignored the letter asking for a copy of the
superintendent's employment contract and summary information about the
performance of the district's students on state achievement tests. See more details.
Ask for a public record in Kansas, and you'll probably get what you want. But don't be surprised if your request generates blank stares, suspicious looks and a demand to provide a lot more information about yourself than the law requires.
If you want to know what your schools spend on salaries, expect to be asked why, and whom you work for. If you want to check on a local crime, you may be questioned by police and you may have to submit to a criminal background check. In Harper County, you may even be detained if you don't explain who you are and why you want to see the crime reports. In several counties, copies will cost $5 a page. Those are some of the conclusions of a project that involved reporters and editors from 19 Kansas newspapers. They went to city halls, county courthouses and school district offices in all 105 counties in late September 2000 in a search of public records. They went as average citizens and did not identify themselves as journalists.
While most of the requests were granted, dozens were denied in whole or in part. And more than half the government agencies asked more questions than the law allows. See more details.
People visiting government offices in search of school violence
reports, routine police arrest logs or other public documents have about
a one-in-four chance of immediately getting what they are looking for.
Half the time they will get nothing. And a lot of the time they will be
quizzed about who they are, who they work for and why they want the
record, even though that is a direct violation of the state's Public
A June 15, 2000, audit of Maryland public record access conducted by 20
newspapers from across the state's 23 counties and Baltimore City
revealed that public officials routinely deny public access to even the
most basic records. Sheriff's departments were the worst offenders,
denying access to routine arrest logs 74% of the time.
The Access Maryland project was organized by the Freedom of Information
subcommittee of the Maryland-Delaware-District of Columbia Press
Among the findings:
- Sheriff's departments or city police denied access to arrest logs 74% of the time;
- County nursing home ombudsmen provided nursing home reports 74% of the time;
- Police chief or sheriff expense reports were provided 68% of the
time, excluding three instances where the finance department
indicated that the chief did not file for expenses;
- School officials provided copies of the superintendent's contract 60% of the time, and provided school violence reports 43% of the time;
- MVA offices complied with state law and released the driver's record of
senators minus personal information that is closed 47% of
The Public Information audit was the work of the Freedom of Information
subcommittee of the Maryland Delaware D.C. Press Association. Committee
members include co-chairs Tom Marquardt and
Jim Keat, Jim Lee, Mike Powell and Gloria George. For more information,
contact Tom Marquardt at 410/280-5953.
In September, the Maryland Attorney General's office published a new
edition of its Open Meetings Manual. The major improvement is that the
text of the statute is included electronically for the first time. It is otherwise an
official but relatively balanced interpretation of the statute with
additional reference information. Available on paper ($7.50 a copy).
A new edition of the state's public records manual was also planned.
More than half of Minnesota jails violate information law, according to a statewide audit of freedom-of-information laws compliance by local officials. "This survey shows three reasons public employees fail to comply with the requirements," a media attorney said. "They don't want you to have it. They are too busy or distracted to give it to you. Or they are confused about what the law is. The resistance you encounter is directly proportional to how much an official sees the data as his agency's property."
The Society of Professional Journalists, Minnesota chapter, coordinated the survey, conducted March 22 to April 7. Daily and weekly newspapers and St. Cloud State University arranged for volunteers to request inspection of three public records in each of Minnesota's 87 counties.
Volunteers were instructed to represent themselves as public citizens seeking public information. They were instructed that it was OK to give their names if asked, but to give no explanation for why they wanted to inspect the records. See more details. Related story.
A random sampling of 214 public entities was undertaken by State Auditor Claire McCaskill in response to citizen concerns and lawsuits over access to public records. The agency mailed a letter on plain paper making a simple request for the minutes to the last board meeting held in calendar year 1998. By asking for the minutes, the office was also able to determine compliance with the closed session provisions of the Sunshine Law.
The review disclosed that a significant number of political subdivisions did not respond to the request, denied the request, or responded late. "We estimated that 1,649 of the 3,459 (47.6%) political subdivisions would not respond properly to public requests. We concluded that compliance with the Sunshine Law would improve measurably if political subdivisions understood their responsibilities."
In response to the audit results and some court decisions, a state senator introduced legislation that would revise the standard of proof for violations and increase the maximum fine from $500 to $25,000 for a "knowing violation." Public officials usually escape financial penalties for their violations because they are found to be not "purposeful violations" under the current legal standard or because most members of public boards receive no direct compensation. Most Sunshine lawsuits are initiated by private citizens or the news media, who must bear the cost of enforcement. See more details.
Seven New Jersey newspapers owned by Gannett Co. tested open records laws by asking 601 public agencies to respond to requests. Patterns of resistance and misapplication of the law were found. The newspapers sent employees to 213 municipalities seeking clearly public information from school boards and municipal governing bodies, but they got the requested records less than half the time. When police records that people believe should be public were added to the mix, substantially fewer records were released.
As a direct result of Gannett New Jersey's push for a public access overhaul, leaders in both houses of the Legislature agreed to support a reform bill and bring it to a vote by June. Gov. Whitman also has given her support to the current measure, which calls for fines of up to $5,000 for willful withholding of public records, and a free court appeal.
County, city, court and school officials routinely violate state law by failing to release public records such as budgets, public employees' salaries, and reports of crimes and court cases, a statewide survey by New Mexico newspapers found.
Three of every 10 requests for access to records were unsuccessful in a check of 210 government offices in all 33 New Mexico counties. Member newspapers of the New Mexico Press Association and the Associated Press, including the Albuquerque Tribune, participated. The New Mexico Foundation for Open Government sponsored the freedom of information audit. See more details.
Expect rejection one-third of the time when you request a North
Carolina city or county public record and a higher refusal rate by
police agencies, which often violate citizens' rights by asking who
wants the record and why.
In an unprecedented test of North Carolina's public records-access
law, the North Carolina Press Association and the North Carolina
Associated Press News Council sent reporters to agencies in 89 counties
to request public information from May 3-7, 1999. Newspapers in the
state's other 11 counties chose not to participate in the survey.
Reporters from 49 newspapers presented themselves as average
citizens, as the law says they may do, at police and sheriff's
departments, county health offices, city and town finance offices and
school district headquarters.
Seven types of documents were sought: crime logs and crime incident
reports, concealed-pistol permit applications, coaches' salaries,
restaurant sanitation ratings, and expense reports for mayors and town
managers. All are public records under state law, meaning the public is
supposed to be able to view and copy them upon request.
Compliance ranged from 52% to 67% for six records. Attempts to obtain
the seventh the pistol permit applications failed in all but two
instances, often because the applications also contained private
information and sheriffs wrongly thought that placed them off-limits.
Denials and hostility spiked at police agencies when reporters
invoked their legal right to anonymity when seeking public information.
Police often pressured them to reveal their names, whom they worked for
and why they wanted to see the public record.
When asking got them nowhere, the Roxboro Police Department and the
Montgomery County sheriff's office ran license tag checks to find out
who was making inquiries. The Roxboro police chief detained a reporter
while checking to see if his car insurance was current.
"Tell me who you're with." Chowan County Sheriff Fred Spruill's response became a refrain heard
at police agency front desks from the coastal plain to the Smokies: "I
don't care what you said, I am not giving you any information until you
tell me who you're with." See more details.
The Daily Oklahoman, the Tulsa World and the Oklahoma Press Association
teamed up on a statewide open records project that started running Aug.
The project involved requests for 1,880 public records from city,
state agencies in Oklahoma. The project also provided camera-ready pages
for all state newspapers.
The package had some amusing parts, such as a response from a school
secretary when we asked for the football coach's contract: "We don't usually
give these out to people we don't know."
Oklahoma City police blame miscommunication for records clerks' attempt
to charge thousands of dollars for a radio log report requested by
Police Chief M.T. Berry said records clerks should have sent the
reporters to his public information officers, where the request could
have been handled for just $8.
Instead, the clerks determined The Oklahoman was making commercial
requests and applied fees that would be charged to any other business,
such as attorneys' offices or insurance companies.
Berry and the city's legal staff said the fees are authorized by
municipal law. They said the Oklahoma Open Records Act supports the city law.
The act states: "If the request is solely for commercial purpose ...
then the public body may charge a reasonable fee to recover the direct
cost of document search."
The same act also, however, exempts all but copying costs if a
newspaper or broadcast organization requests records for news purposes. See more details.
Reporters from 16 newspapers went into every county and tried to get documents that had always been open. Almost one in three requests were denied. That number increased to 43% when police or financial records were involved. State police turned down all requests.
In Philadelphia, a records manager was blocked by his boss from placing on-line the city's rules for record maintenance. The retention schedules describe the kinds of records created and maintained by city agencies. Archival information is already on line, but few active records are posted. The city administration said it wasn't the job of the records department to facilitate access.
After the audit was released, Sen. Stewart Greenleaf introduced a bill that would scrap the current one-page Right to Know Law and replace it with a new open records law. Under the new law, all documents by the legislative and executive branch, local governments, school boards, and college and universities owned or aided by the state would become public. It would also greatly increase access to police records, which are almost completely closed right now.
The new law would also set up an independent Office of Access to Public Records that would allow citizens to appeal any time someone refuses to hand over the records. See more details.
University students visited all 39 cities and towns in the state and requested a variety of documents, all covered by the state's Open Records Act. Overall, 83.5% of the 10 index items were provided. The most disappointing results were from seven jurisdictions in which only 60% or 70% of the requests were fulfilled.
The police were by far the worst division of local government. They fulfilled only 35% of all the requests used to measure compliance. No police department released information regarding the most recent police brutality complaints even though these records, in redacted form, are clearly subject to disclosure.
Only eight (25.8%) of the school committees were in full legal compliance for the quality of minutes. Only four city/town council minutes received this distinction. Problems in legal compliance were mostly (a) city/town minutes not listing a record of votes by member and (b) school committee minutes not recording who was present and absent.
In a follow-up study in Rhode Island, student researchers at Brown's Taubman Center for Public Policy found problems with access to public information at the courts. While seeking information about expungement of felony convictions, sealed records and municipal settlements, researchers encountered inconsistent recordkeeping, missing files and faulty implementation of open-records laws. See more details.
A statewide audit of FOI compliance by South Carolina newspapers found that in one of three cases public records were denied or not produced within the law's time limits. Participants made 363 requests for jail logs, crime reports, superintendents' contracts, meeting minutes and city and county expense reports. Those making the requests did not say they were reporters or journalism students. In many cases where records were supposed to be available immediately, agencies were given two or three chances to produce them. See more details.
Fourteen newspapers and the Associated Press conducted a statewide project, exposing inadequate responses by various agencies and explaining to readers how open records laws should work. Identifying themselves only as Virginia citizens, reporters sought access to five types of public records in each of the state's 235 cities and counties. Health departments complied with the requests in 88% of the cases, law enforcement in only 16%. The overall compliance rate was 58%. See complete details.
More than half of Wisconsin's 72 sheriffs' departments failed to comply with provisions of the state's Open Records Law in a 1999 audit directed by the Wisconsin Freedom of Information Council. A total of 13 sheriffs' offices refused outright to release lists of people they had arrested in the previous week. Another 30 released the information only after making the requesters comply with requirements not authorized by the Open Records Law.
Sheriffs' departments were just one of five governmental areas tested in the first-ever audit of the condition of governmental openness in Wisconsin. The Freedom of Information Council, a statewide organization that advocates for open government, organized volunteers in each of the 72 counties. They, in turn, sought access to routine public records from sheriffs and county clerks and from randomly selected school districts and municipal offices in each of the counties.
The audit revealed that administration of the open-records law varies greatly from county to county and that clerks and others charged with handling requests find the law confusing. The sheriffs were by far the least cooperative in complying with the requests for arrest logs. Some insisted they had no idea what the requester was asking for, others said the list was no one's business in the first place. Some made the requester wait several days for the information.
See more details.
A brief look at other sunshine-law developments around the nation.
San Francisco now has its own sunshine law. By a margin of almost 3-2, voters approved "Measure G" on last fall's citywide ballot, opening up more meetings and records than almost anywhere else in the nation. The Sunshine Ordinance was passed despite strong opposition from political leaders, businesses and the San Francisco Chronicle. Features of the ordinance include administrative appeals to the city attorney and penalties ranging from reprimand to dismissal for city employees who willfully withhold public records.
A state senator has introduced bills to exempt records of public corruption cases from the Sunshine Law. The worst would give investigative and prosecutorial agencies the discretion to close all records pertaining to a public corruption investigation for three years after the case is deemed inactive. In the Miami-Dade school district, a student was photographing a random weapons search for a news story when the private security firm hired by the district locked him in a classroom for 20 minutes and confiscated his film.
The First Amendment Foundation has published The Florida Public Records Handbook, the companion to the foundation's Government-in-the-Sunshine Manual. The new 457-page handbook features profiles of about 170 of the state's most useful public records, including those found at the courthouse, city hall, state agencies and on the Internet. The book also features 70 records illustrations and details about Florida's Public Records Law. The author is Joe Adams, an editorial writer and editor at The Florida Times-Union. The editors are Barbara Petersen, executive director of the foundation, and Mark Middlebrook, a past editor of Investigative Reporters and Editors. The project was made possible through a grant from the National Freedom of Information Coalition.
After June 30, a new law goes into effect that could hamstring the news media in Hawaii on reporting crime and other news. In essence, the law bars hospitals and other health-care agencies from releasing the medical conditions of patients. It does so by requiring the facilities to get the approval of patients or their representatives before releasing the information. A state senator had said his committee would take care of the problem, but it never did. The bill was pushed by Moya Gray, Office of Information Practices director, who headed a task force on
School districts have successfully lobbied for legislation that will allow them to keep security plans private. The districts argue that making them public would allow someone to use that information to circumvent the plan. Our concern is when a citizen or media outlet wants to examine whether a school has an adequate plan in place. School officials have attempted to remove the requirement that school performance reports be published in the newspaper. This appears unlikely to pass.
County officials want to eliminate the requirement that claims be published in the paper before they are paid. This also appears unlikely to pass.
The Cedar Rapids Gazette, after three years of litigation, finally prevailed in determining that records of public employee sick leave should be available for public inspection, including the names of the employees and what dates they took sick leave. Access to the records had been opposed by the employee union. The Quad City Times in Davenport prevailed in getting access to police records that had been kept secret when the suspect was a peace officer or a member of the law enforcement brotherhood. The settlement included a step forward in providing electronic access to the cop shop records.
The Legislature is looking at ways around absolute secrecy for reports of child abuse after a child was killed despite repeated reports of abuse to the Department of Human Services and other governmental agencies. Proposals would provide for some report access in the death or serious injury to a child.
The House Local Government Committee is expected to come forth with recommendations for eliminating about a half dozen of the 44 exemptions to the records law, for establishing an FOI officer in the Attorney General's office, and for strengthening enforcement of open meetings and open records laws.
A bill has been introduced that will require the audio taping of all executive sessions of public bodies in Kansas.
The big development has been the final organization of the Kansas Sunshine Coalition for Open Government, a non-profit educational organization representing a broad base of media and non-media individuals, groups and associations.
Courts tossed out a lawsuit seeking access to bar exam records, including grading guidelines and model answers. The state is one of three that denies access to bar-exam records.
A federal judge hearing racketeering charges against ex-Gov. Edwards gagged all trial participants, ordered juror anonymity, barred access to evidence and threatened to hold reporters in contempt, if they published sealed information.
The Michigan Supreme Court appears to be turning back the clock regarding access. In Federated Publications v. MSU (1999)
it held that state universities are exempt from FOI laws. In Mager v. State Police (1999) it denied a request for gun records because it did not go to "the core purpose of the FOIA." It recently granted leave to consider the Court of Appeals decision in Herald Company v. Bay City.
News organizations have asked the Montana Supreme Court to throw out a state Revenue Department policy that keeps secret some coal tax records that used to be public. They argued the practice violates the state's constitutional right to know and bestows on corporations a right to privacy that was intended for people. A Revenue Department lawyer contended that a court ruling against the department could jeopardize the confidentiality of all taxpayer records.
In another court case, a district judge ruled that the public should be able to know how much money the state paid to the family of a woman who was murdered by a man on probation. "Public disclosure of settlement agreements involving the state helps assure the proper spending of public moneys," she ruled. The case is on appeal.
A State Supreme Court Justice declared New York State's prohibition against cameras in the courts unconstitutional and proceeded to permit the Amado Diallo trial to move forward under the full view and scrutiny of the public. New York State conducted three separate trial periods over more than a decade and after all three were phased out, a commission recommended that cameras be permitted. Yet, the New York State Legislature, specifically the Senate, refused to enact a permanent legislation. When the OJ Simpson case captured national attention, legislators allowed the trial period to phase out and did not enact either an extension or permanent law.
Robert Freeman, executive director of the New York State Committee on Open Government, recently backed special access fees to encourage a faster move toward e-government and on-line access to public records.
The state's chief justice has announced establishment of a 40-member media and courts forum to explore the sometimes conflicting needs of reporters and the courts. Composed of newspaper and broadcast reporters, editors and managers, court officials, lawyers and law enforcement, the forum will be similar to one in the early 1980s that led to cameras being allowed in courtrooms, Chief Justice Henry Frye said. Technology has helped the media make huge strides, but the court system has fallen behind, Fyre said. He's hoping state legislators will take to heart the findings from a recent study by the Gartner Group, and provide the necessary funding for a more user-friendly court system.
The attorney general has issued three opinions concerning jail and prison in recent months. The attorney general ruled that records dealing with the death of a jailed juvenile are not confidential since they do not relate to any alleged juvenile offense. He also said that juvenile confidentiality laws concerning law enforcement agencies do not apply to jails since jails are not law enforcement agencies. However, in a third opinion, the attorney general said that a 1997 amendment intended to clear up administrative procedures concerning prisoners actually closes all records concerning inmates, including information about escapes, jail deaths or medical information requested by spouses or relatives. Attorney General opinions, as well as the Attorney General's Open Meetings/Open Records Manual can be accessed here.
Following the lead of Virginia and several other states, the legislature has required statewide political candidates to file campaign finance reports electronically. On-line disclosure will begin in 2001.
The State Board of Higher Education has decided to seek legislative approval to permit anonymity for donors to all state universities. The '99 legislature approved the idea for one campus (Oregon Health Sciences U.), which had been semi-privatized. Now it appears that, if lawmakers go for this idea, all information gathered on donors' identities and the nature of their gifts can be kept secret even after the information leaves the sanctity of the university foundations (set up to accept gifts and provide tax shelter) and moves into the state record stream. Administrators assure that there are safeguards in place to screen out undesirable donors or gifts intended to manipulate education. University of Oregon President Dave Frohnmayer, author of the state's open records law, holds that anonymity is necessary because some donors insist on privacy and won't give unless they get it.
Pending in the state legislature is a bill that would rewrite parts of the Access to Public Records Law and would require that when a confidential record is requested by a member of the public, the individual named in that record must be notified that someone wants to see it.
South Carolina took the court fight to overturn the federal Driver's Privacy Protection Act to the Supreme Court, which rejected its 10th Amendment argument. Government agencies, licensed private investigators and insurance companies will continue to have "carve-out" exemptions giving them access to vehicle descriptions, names, addresses and phone numbers of motorists. Journalists are now debating whether to seek a similar exemption.
In a number of changes in Texas FOI laws, administrative review of planned record denials was speeded up, with an approximate 10-week timetable replacing a previous 3-4 month process. The Office of the Attorney General must review any agency's intended access denial.
Open-record rules were liberalized by identifying 18 categories of information that are considered public by their very nature, including completed audits and reports, information about public employees and officials, contracts, tax information, agency organization charts, rules and opinions, policy statements and procedural manuals. This information must always be disclosed to the public, unless specifically made confidential by another law.
Other changes mean greater openness and accountability by public officials and agencies, new safeguards to protect individual privacy, new protection for sensitive business information collected by government agencies, and improved access to public records through the Internet and other electronic formats. The Legislature also revised many of the procedures for requesting public information.
The Attorney General was given authority to maintain uniformity in application, operation and interpretation of the Public Information Act. This will help reduce confusion and disagreement over what is public and what is not.
All governmental bodies must post a sign informing the public of its basic rights under the Public Information Act. The signs will start going up early in the new year.
A number of bills affecting access were passed by the 2000 Legislature. On the plus side, HB 222 required that basic information received by a court for an investigative subpoena remain a public record, and SB 147 created Web-based delivery of civil court documents and filings.
The legislature also brought Utah law into line with federal law and the recent Supreme Court decision by closing all motor vehicle registration records and most personal information on drivers license database. The drivers license division still may issue records that could include DUI violations. Those registering motor vehicle records can "opt in" to make their records public.
Another law (HB 243) limits public access to traffic-accident reports, but provides an exemption to news media with several restrictions.
Another law enacted exempted workers compensation proof of insurance from designation as "public" records. The state code also was changed to allow electronic delivery of services.
A lawsuit by The Burlington Free Press opened up some University of Vermont records that the president and others claimed could not be released under the Buckley Amendment. The case centered on the men's hockey team, which eventually had the season nixed midway through after it was revealed the players had all lied to investigators hired by UVM to check on hazing allegations. UVM announced on Dec. 3 that team and athletic department rules had been broken and that action would be taken against the players, but UVM could not say what it was, claiming the Buckley Amendment prohibited the release. The Free Press sued and the state judge ordered about 70 pages of material released, including statements given by UVM officials. Some of the student material was still protected.
The state's 31-year-old Freedom of Information Act was rewritten, reorganized, simplified and tightened following a year-long study by a special legislative subcommittee. Penalties were tightened and training seminars were conducted for more than 1,000 government officials and public employees. Access to law enforcement records was improved only slightly.
After a second full year of study, the legislature's FOI commission called for creation of a full-time office and advisory council to work for full compliance with the open-government law. The office will issue non-binding opinions, mediate disputes informally and provide on-going training and citizen manuals. See more details.
A stronger open-meetings law was enacted in 1999, and open-record reforms were being sought this year. The state press association pressed for the changes after surveying journalists about their continuing access problems.
Frosty Landon is the executive director of the Virginia Coalition on Open Government and president of the National Freedom of Information Coalition.